Sanjay Sharma vs State Of U.P.
2021 Latest Caselaw 11529 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				                                                    A.F.R.	
 
Reserved on 25.11.2021
 
							Delivered on 24.12.2021
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 3667 of 2018
 

 
Appellant :- Sanjay Sharma
 
Respondent :- State of U.P. 
 
Counsel for Appellant :- Anil Kumar Jaiswal,Diwan Saifullah Khan,Nazrul Islam Jafri,Ravindra Pratap Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Manoj Misra,J.

Hon'ble Sameer Jain,J.

(Delivered by Hon'ble Sameer Jain,J.)

1. The present appeal has been preferred by the appellant against the judgment and order dated 8.6.2018 passed by Additional District and Sessions Judge, Court No.9, Bulandshahar in Sessions Trial No. 247 of 2017 (State Vs. Sanjay Sharma) arising out of Case Crime No. 69 of 2016, under Section 302 IPC and Sessions Trial No.69 of 2018 (State Vs. Sanjay Sharma), under Section 25 of Arms Act arising out of Case Crime No. 70 of 2016, by which, learned trial court convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment with fine of Rs.25,000/- (Rs. Twenty Five Thousand) and in default of payment of fine one year additional imprisonment; and under Section 25 of Arms Act and sentenced the appellant to undergo three years rigorous imprisonment with fine of Rs.5000/- (Rs. Five Thousand) and in default thereof three months additional imprisonment.

2. The prosecution story, in nutshell, is that on 16.02.2016, Rajendra Sharma (PW-1) lodged First Information Report of the present case under Sections 302, 504 IPC at Police Station Gulawathi, District Bulandshahar against appellant-Sanjay Sharma, which was registered as Case Crime No. 69 of 2016 with the allegation that on 16.02.2016 his wife Smt. Laxmi (PW-3) and his son Ankit @ Lala (deceased) aged about 15 years along with his nephew Rakesh Sharma (PW-2) went to attend the function of ring ceremony (Sagai) of his relative, namely, Dev Dutt Sharma, and in the function of ring ceremony (Sagai), the appellant, who is son-in-law of Dev Dutt Sharma, was also present; at about 3.00 P.M. the appellant Sanjay Sharma called Ankit (deceased) on the roof and asked him to bring water for liquor; when Ankit (deceased) refused, appellant Sanjay Sharma started abusing him. On hearing the noise, PW-1's wife Smt. Laxmi and nephew Rakesh Sharma (PW-2) arrived at the roof and they witnessed that appellant-Sanjay Sharma, in a fit of anger, shot Ankit at about 3.30 P.M., as a result whereof, his son Ankit fell down and appellant-Sanjay Sharma managed to escape. It is mentioned in the FIR that information of the incident was given by informant's wife.

3. After registration of the FIR, police arrived at the house of Dev Dutt Sharma and investigation was started. During investigation, on same day i.e. on 16.02.2016, a country made pistol was recovered from the roof of the house of Dev Dutt Sharma in the presence of Rajendra Sharma (informant) P.W.-1 and Sri Nanak Chandra Sharma. The Investigating Officer prepared recovery memo of country made pistol as (Ext.Ka-11). On same day i.e. on 16.02.2016, Investigating Officer collected blood stained and plain scrape of roof from the spot and prepared recovery memo (Ext. Ka-12). Thereafter, inquest report of the dead body of Ankit was prepared on 16.02.2016 as (Ext.Ka-2) and post-mortem report of the deceased (Ankit) was prepared as (Ext.Ka-8). During post-mortem, doctor found two firearm wounds on the body of the deceased, one was entry and the other was exit. Both injuries communicating to each other. After investigation, Investigating Officer submitted charge-sheet on 23.05.2017 against the appellant, under Sections 302, 504 IPC as (Ext. Ka-14) and also submitted charge-sheet against him under Section of 25 Arms Act on 30.06.2017. As the case under Arms Act was related to the present case both the cases were committed to the Court of Session. After committal of the case, on 29.07.2017, the trial court framed charges against the appellant under Sections 302 and 504 IPC. On 22.02.2018 charge was also framed under Section 25 of Arms Act. Appellant pleaded not guilty and claimed trial.

4. During trial, prosecution examined 13 witnesses. Out of 13 witnesses, 5 witnesses, namely, Rajendra Sharma (PW-1), Rakesh Sharma (PW-2), Smt. Laxmi (PW-3), Smt. Seema (PW-4) and Virendra (PW-5) are the witnesses of fact whereas the rest are formal witnesses.

5. After recording the statement of prosecution witnesses, learned trial court examined the appellant-Sanjay Sharma under Section 313 Cr.P.C. and convicted him on the basis of evidence available on record, under Section 302, 504 IPC and Section 25 Arms Act.

6. We have heard Sri Akhilesh Srivastava and Sri Shaksham Srivastava, learned counsel for the appellant; and Ms. Sanyukta Singh, Brief holder and Sri J.K. Upadhyay, learned A.G.A. for the State.

7. Learned counsel for the appellant contended that PW-1, Rajendra Sharma, the informant was not an eye witness. He was not present at the spot. He arrived at the place of incident after receiving information and he did not support the FIR version during his cross examination. Smt. Laxmi (PW-3) mother of the deceased also did not support the prosecution case. Similarly, Rakesh Sharma (PW-2), the nephew of informant Rajendra Sharma (PW-1) and cousin brother of deceased Ankit, who accompanied Ankit along with his mother to attend the function of ring ceremony (Sagai) at the house of Dev Dutt Sharma also did not support the prosecution case before the trial court. Similarly, Smt. Seema (PW-4) wife of Rakesh Sharma and Virendra (PW-5) independent witnesses have also turned hostile. Learned counsel further contended that as all the witnesses of fact have turned hostile, conviction of the appellant on the basis of their testimony is unsustainable. Learned counsel further argued that as country made pistol was not recovered either from the possession of appellant or on his pointing out, therefore, his conviction under Section 25 Arms Act is also unsustainable.

8. Per contra, learned State counsel argued that the FIR of the present case was lodged promptly and Rajendra Sharma (PW-1) in his examination-in-chief supported the version of FIR though he turned hostile during his cross examination. The witnesses, who turned hostile during trial, namely, Smt. Laxmi (PW-3), Rakesh Sharma (P-2), Smt. Seema (PW-4) and Virendra (PW-5), have supported the prosecution case in their statements recorded under Section 161 Cr.P.C. by the Investigating Officer, therefore, under the facts and circumstances of the present case, trial court has rightly relied on their statements recorded during investigation. Learned State counsel further argued that the testimony of a hostile witness can be believed and in the present case a young boy of 15 years was murdered on trivial issue and as the appellant was the person, who caused the death of deceased Ankit, and, immediately after the incident, the country made pistol, which was used in the commission of crime, was recovered from the roof, possession of recovered country made pistol can very well be attributed to appellant Sanjay Sharma. Learned State counsel further contended that during investigation the country made pistol and cartridges were sent for forensic examination. As per forensic report, the recovered country made pistol and empty cartridge matched with each other, therefore, conviction recorded by the trial court in respect of appellant is sustainable and present appeal filed by the appellant is liable to be dismissed.

9. We have given our thoughtful consideration on the rival submissions and perused the entire evidence on record.

10. Before analysing the evidence available on record, it is necessary to notice in brief the evidence provided by the prosecution during trial.

11. Prosecution examined Rajendra Sharma (informant of the case) as PW-1, who lodged the FIR of the present case and proved the FIR as (Ext.ka-1). In his examination-in-chief, this witness although supported the version of the FIR, but in cross examination he did not support his statement recorded during examination-in-chief. This witness in cross examination stated that Panna lal, who is scribe the FIR, is his brother-in-law and he never told him that appellant Sanjay Sharma caused firearm injury to his son Ankit. He further stated that he, under the pressure of villagers, gave his statement earlier during examination-in-chief. This witness did not support his statement recorded by the Investigating Officer under Section 161 Cr.P.C. This witness is not an eye witness and FIR (Ext.Ka-1) of the present case lodged by him was based on hearsay.

12. Next witness produced by the prosecution is Rakesh Sharma (PW-2). He is the nephew of Rajendra Sharma (PW-1) and he was the person, who, accompanied the deceased Ankit along with Smt. Laxmi (PW-3) to the function of ring ceremony (Sagai) arranged at the house of Dev Dutt Sharma. This witness also did not support the prosecution case and stated in his examination-in-chief that he is the cousin brother of deceased (Ankit) and on 16.02.2016 he attended the function of ring ceremony (Sagai) at the house of Dev Dutt Sharma along with his wife Smt. Seema (PW-4). He further stated that his aunt, Smt. Laxmi (PW-3), and his cousin brother Ankit also attended the function and at about 3.30 PM, he heard the sound of gun shot coming from the roof of the house of Dev Dutt Sharma during the function of ring ceremony and when he reached there, there were number of people gathered there. This witness further stated that his aunt also arrived at the spot and he did not witness the appellant causing firearm injury to Ankit because at the time of incident he was not present. This witness was also declared hostile. During his cross examination, PW-2 did not support his statement recorded by the Investigating Officer under Section 161 Cr.P.C.

13. Next witness examined by the prosecution is Smt. Laxmi (PW-3). This witness is the mother of deceased (Ankit) and wife of PW-1 Rajendra Sharma (informant). During her examination-in-chief, this witness also did not support the prosecution case and stated that in the function of ring ceremony (Sagai), at about 3.30 PM, she heard gun shot. At that time she was attending ladies sangeet and when she reached the spot, she saw that somebody had shot his son Ankit. She further stated that she did not witness the appellant fire the shot upon his son Ankit because she was not present at the spot. Prosecution also declared her hostile. In her cross examination, this witness also did not support her earlier statement recorded by the Investigating Officer during investigation. She futher stated that she never told her husband Rajendra Sharma (PW-1) that appellant shot dead Ankit.

14. Smt. Seema was examined by the prosecution as PW-4. She is the wife of Rakesh Sharma (PW-2). She also accompanied her husband Rakesh Sharma in the function of ring ceremony (Sagai) arranged at the house of Dev Dutt Sharma along with Laxmi (PW-3) and Ankit (deceased). She, in her examination-in-chief, denied the prosecution case and stated that as soon as she reached the spot, the person who had caused firearm injury to Ankit had already managed to escape and she did not witness the appellant firing at Ankit (deceased). This witness further stated that she was also sitting along with Laxmi (PW-3) in the programme of ladies sangeet. In her cross examination, she also did not support her statement recorded by the Investigating Officer during investigation. This witness was also declared hostile by the prosecution.

15. Virendra was examined by the prosecution as PW-5. This witness is an independent witness, who was a resident of the village of Dev Dutt Sharma, where the function of ring ceremony (Sagai) was arranged. This witness also did not support the prosecution case and was declared hostile. This witness in his cross examination stated that the incident did not occur in his presence and he reached the spot after hearing the sound of gunshot and he did not witness the appellant causing gunshot injury to Ankit. In his cross examination, this witness also did not support his earlier statement recorded under Section 161 Cr.P.C. during investigation by the Investigating Officer.

16. The prosecution next examined Brijesh Kumar Yadav, S.S.I. as PW-6. This witness was the first Investigating Officer of the case. He stated in his examination-in-chief that he was posted as Station House Officer at Police Station Jewar, District Gautam Budh Nagar and he started investigation of the case and recorded the statement of informant Rajendra Sharma (PW-1) and arrived at the spot and made the recovery of country made pistol and cartridge. Recovery memo of the same was prepared by S.S.I. Paan Singh and inquest report of deceased (Ankit @ Lala) was prepared by S.I. Neeraj Kumar under his supervision. This witness proved the inquest report as (Ext. Ka-2). After sending the body for post mortem examination, this witness prepared site plan and proved the same as (Ext. Ka-7). PW-6 further stated that in spite of his best effort, appellant could not be arrested as he was trying to avoid his arrest, therefore, he moved an application under Section 82 Cr.P.C. against the appellant. This witness also recorded statements of Smt. Laxmi (PW-3), Rakesh Sharma (PW-2) and scribe of the FIR, Panna Lal (not examined). In his cross examination, he stated that he tried to receive finger print from the country made pistol, but he could not get the finger print.

17. The prosecution next examined Dr. Pushpendra Kumar as PW-7. He is the doctor, who conducted post mortem of the dead body of deceased. He stated that on 17.02.2016 at about 11.05 AM he started the post mortem examination of the deceased, which was completed by about 11.35 AM. He found following injuries on the body of deceased Ankit:-

"(1) A firearm wound of entry size 1.0 cm x 1.0 cm abdominal cavity deep present on right upper part of abdomen 12 cm below right nipple at 4 o' clock position blackening and tattooing present. Margins are inverted on exploration liver found lacerated about one liter blood present in abdominal cavity.

(2) A firearm wound of exit size 1.0 cm x 1.5 cm abdominal cavity deep present on left side back of abdomen 18 cm below from left scapula at 3 o' clock position margins are everted on exploration left kidney found lacerated.

Injury no.1 and injury no.2 communicating to each other."

He proved the post mortem of deceased Ankit as (Ext. Ka-8). According to this witness, rigor mortis was present all over the body.

18. The prosecution next examined constable Adesh Kumar as PW-8. This witness proved the chik FIR of the case as (Ext Ka-9) and G.D. entry as (Ext. Ka-10). This witness in his cross examination stated that at the police station informant of the case came along with some other person, but scribe of the FIR Panna Lal did not come with him.

19. The prosecution next examined S.I. Paan Singh as PW-9. This witness in his statement stated that after registration of the FIR, he along with Brijesh Kumar arrived at the place of incident, which was roof of the house of Dev Dutt Sharma. This witness further stated that on 16.02.2016 at about 07.50 PM he prepared recovery memo of the country made pistol under the direction of Station House Officer, Brijesh Kumar (PW-6). He sealed the pistol. This witness proved recovery memo of pistol as (Ext. Ka-11). He also prepared the memo of blood stained and plain scrape of roof of the house of Dev Dutt Sharma and proved the same as (Ext. Ka-12). This witness further stated that he registered the case against the appellant Sanjay Sharma, under Section 25 of Arms Act. This witness proved that the sealed bundle was sent to Forensic Science Laboratory. He further stated that he did not recover the country made pistol and cartridge from the possession of appellant Sanjay Sharma. He further stated that at the time of preparing the recovery memo, he did not try to take finger print from country made pistol and he did not call any expert in this regard.

20. Prosecution next examined Prabhat Kumar Sharma, S.H.O. as PW-10. This witness was second Investigating Officer of the case. He recorded statements of informant (PW-1), Smt. Laxmi (PW-2) and other witnesses under Section 161 Cr.P.C. On 24.08.2016, he sent the recovered country made pistol and its cartridge for Forensic Examination. In his examination-in-chief, this witness further stated that on 29.10.2016, the brother of appellant Sanjay Sharma provided him a C.D., but after that he was transferred and the case was further investigated by some other Investigating Officer. In his cross examination, this witness stated that the C.D. provided by the brother of appellant was visualized by him and its contents were noted by him in the case diary. This witness neither proved the contents of C.D. nor he proved his noting made in the case diary in this regard.

21. The prosecution next examined H.C.P., Shri Ram Kashyap as PW-11. He was head constable and was posted at Police Station Gulawati. He stated in his statement that he received the investigation of the case under Section 25 Arms Act in respect of appellant Sanjay Sharma. He, during investigation, reached at the spot and prepared site plan and proved the same as (Ext. Ka-13) and recorded statement of witnesses. This witness in his examination-in-chief stated that on 26.04.2017 he received an information that on 25.04.2017 appellant was arrested and with the permission of the Court, he recorded the statement of the appellant in jail. This witness after receiving sanction from District Magistrate submitted charge-sheet against the appellant and proved the same as (Ext. Ka-14). He also proved the sanction given by the District Magistrate, Roshan Jaikab and proved the same as (Ext. Ka-15). In his cross examination, he stated that he conducted the investigation of the case under Section 25 Arms Act on the instruction of S.H.O. concerned. He further stated that the country made pistol was not recovered on the pointing out of the appellant.

22. The prosecution next examined Prabhas Chand as PW-12. This witness is the third Investigating Officer of the case. He stated in his statement that he received investigation of the case from S.O. Mahaveer after his transfer and during investigation he recorded the statement of Smt. Seema (PW-4) and other witnesses and after investigation on 23.05.2017 he submitted charge-sheet against the appellant under Sections 302, 504 IPC and proved the same as (Ext. Ka-16). This witness also proved the report of Forensic Science Laboratory as (Ext.Ka-17). In his cross examination, this witness stated that when he received the investigation of the case, its investigation was almost complete. He further stated in his cross examination that it is true that he did not inquire about the innocence of the appellant.

23. Last witness examined by the prosecution was Md. Shadab (PW-13). He was the person, who made G.D. entry in respect of the case registered under Section 25 Arms Act and he proved the G.D. Entry as (Ext. Ka-18).

Arguments and analysis

24. Perusal of the record of the present case reveals that prosecution has examined five witnesses of fact, namely, Rajendra Sharma (PW-1), Rakesh Sharma (PW-2), Smt. Laxmi (PW-3), Smt. Seema (PW-4) and Virendra (PW-5). During the course of trial, PW-2 to PW-5 have turned hostile. They did not support the prosecution version. During their cross examination, these witnesses denied their earlier statements given by them before the police i.e. to Investigating Officer under Section 161 Cr.P.C. These four witnesses (PW-2 to PW-5) did not support the prosecution version even in their examination-in-chief. As far as PW-1, Rajendra Sharma (informant) is concerned, he though supported the FIR version in his examination-in-chief, but in his cross examination he did not support his earlier version given in examination-in-chief. This witness even discredited the FIR, which was lodged by him against the appellant by stating that on Nakal Tehrir he put his signature on the instructions of the villagers. PW-1 also disapproved his earlier statement recorded by the Investigating Officer during investigation under Section 161 Cr.P.C. Nonetheless, this witness is not an eye witness and his testimony is based on hearsay, therefore, his testimony given in examination-in-chief is of no help for the prosecution.

25. Learned trial court while convicting the appellant in the present case relied upon the judgment of Hon'ble Supreme Court in Bhagwan Dass Vs. State (NCT) of Delhi (2011) 6 SCC 396 and accepted the testimonies of witnesses, namely, Rakesh Sharma (PW-2), Smt. Laxmi (PW-3), Smt. Seema (PW-4) and Virendra (PW-5) recorded by the Investigating Officer during investigation under Section 161 Cr.P.C.

26. The law is well settled that the statements recorded under Section 161 Cr.P.C. can only be used for the purpose of contradiction and it is not a substantive piece of evidence and such statements cannot be used against the accused persons.

27. In Ram Swaroop and others Vs. State of Rajasthan 2005 SCC (Cri) 61, the Apex Court in paragraph no.23 of the said judgment observed as follows:-

"We have also noticed that the High Court has attached undue importance to the statements made in the course of investigation and recorded under Section 161 of the Code of Criminal Procedure. It is well settled that a statement recorded under Section 161 of the Code of Criminal Procedure cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness."

28. In Tahsildar Singh and others Vs. The State of Uttar Pradesh AIR 1959 SC 1012, six Judges Bench of the Apex Court observed that the statements recorded by the police officer during the course of investigation can only be used to contradict the evidence and not for other purpose. Further three Judges Bench of the Apex Court in V.K. Mishra and another Vs. State of Uttarakhand and another (2015) 9 SCC 588 after scrutinizing the scope of Section 162 Cr.P.C. observed in paragraph 16 as follows:-

"Section 162 Cr.P.C. bars use of statement of witnesses recorded by the police except for the limited purpose of contradiction of such witnesses as indicated there. The statement made by a witness before the police under Section 161(1) Cr.P.C. can be used only for the purpose of contradicting such witness on what he has stated at the trial as laid down in the proviso to Section 162(1) Cr.P.C. The statements under Section 161 Cr.P.C. recorded during the investigation are not substantive pieces of evidence but can be used primarily for the limited purpose: (i) of contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the re-examination of the witness if necessary."

29. Recently in Parvat Singh and others Vs. State of Madhya Pradesh (2020) 4 SCC 33, Hon'ble Apex Court observed that "as per settled position of law, the statement recorded under Section 161 Cr.P.C. is inadmissible in evidence and cannot be relied upon or used to convict the accused. As per the settled position of law the statement recorded under Section 161 Cr.P.C. can be used only to prove the contradictions and/or omissions".

30. Thus law with regard to use of the statement recorded by the Investigating Officer during investigation under Section 161 Cr.P.C. is well settled that on the basis of such statements, accused cannot be convicted.

31. The judgment of Bhagwan Das (supra) relied upon by the trial is distinguishable on facts. In Bhagwan Das case (supra) mother of accused turned hostile during trial and she resiled from her earlier statement recorded under Section 161 Cr.P.C. during investigation. Hon'ble Supreme Court accepted her statement recorded under Section 161 Cr.P.C. only due to the fact that accused was her son and in view of the Apex Court she obviously wanted to save her son. In the present case, appellant is not even related to any of the witnesses of facts produced by prosecution including PW-1 (informant), PW-2 (mother of deceased) and PW-3, PW-4 and PW-5. Therefore, in our view, statement of prosecution witnesses recorded under Section 161 Cr.P.C. cannot be used against appellant in present case.

32. One more fact, which was taken into account by the learned trial court against the appellant is that after the incident, the appellant could be arrested only after about one year and two months. In this regard, our considered view is that although arrest of the appellant after such a long period of time may create suspicion against him, but merely on this basis he cannot be convicted. Further, although, during investigation, the Investigating Officer moved an application under Section 82/83 Cr.P.C. against the appellant, but the application under Section 83 Cr.P.C. moved by the Investigating Officer was rejected by the trial court, therefore, merely on ground of delay in arrest, the appellant cannot be convicted.

33. Trial court also relied on a circumstance that in the ring ceremony (Sagai) function, appellant-Sanjay Sharma fired three celebratory shots, which shows appellant had used firearm on that day. In our view, this fact could not have been noticed as this fact does not emanate from substantive evidence. Though, it might be part of case diary. Perusal of the statement of S.I. Paan Singh (PW-9) shows that he received a C.D., which was given by the brother of appellant, and he noted the contents of the C.D. in the case diary too, but neither the C.D. was produced by the prosecution nor the contents of the C.D. noted in the case diary were proved during trial. Therefore, merely on narration of these facts in the case diary, it cannot be accepted that the appellant Sanjay Sharma fired three shots by way of celebratory fire.

34. Trial court also observed that there was an opportunity to the appellant to produce evidence in his defence, but he failed to do so. This observation, in our considered view, is misconceived. In a criminal trial it is the duty of the prosecution to prove its case beyond all reasonable doubts and prosecution will have to stand on its own leg. The burden in the criminal trial is upon the prosecution to prove the guilt of the accused. The prosecution cannot take advantage of the weakness of the defence case and, therefore, if appellant failed to produce any evidence in his defence, then also he cannot convicted. His conviction can only be recorded on the basis of substantive evidence.

35. Trial court further noticed that during investigation eye witnesses had filed their respective affidavits before the Investigating Officer to the effect that appellant is innocent but in any of the affidavit it was not mentioned as to who caused the death of the deceased. Further, on the basis of the affidavit filed by Virendra (PW-5), trial court drew an inference that there was pressure to compromise the matter. Whereas, PW-5 stated that the affidavit was typed by the villagers with the help of a lawyer and his signature was taken without reading out the contents of the affidavit to him. Hence, the affidavit cannot be taken as evidence. Similarly, Smt. Seema (PW-4) in her statement stated about the affidavit that the affidavit was prepared by the villagers with the help of a lawyer and the contents of the affidavit were not read over to her, therefore, the affidavit filed by PW-4 could also not be used in the evidence. The finding of the learned trial court that eye witnesses only with the intention to save the appellant did not support the prosecution case and have not given true facts in their statements during trial, in our view, is uncalled for and is also not sustainable, as it is based purely on surmises and conjectures. The trial court accepted the report of Forensic Science Laboratory to connect the firearm, recovered from the roof of Dev Dutt Sharma with the empty cartridge. But, admittedly, the country made pistol was neither recovered from the possession of appellant nor at his pointing out. There is no evidence in this regard that the recovered country made pistol belongs to him, therefore, it cannot be said that appellant was the person, who used the country made pistol in the commission of crime. Thus, conviction of the appellant under Section 25 of Arms Act is also unsustainable.

36. From the discussion made above, we are of the considered view that the prosecution, in the present case, has failed to prove the guilt of the appellant beyond all reasonable doubt and the evidence produced by the prosecution is of such nature, on the basis of which, the conviction of the appellant in the present case is not possible.

37. As a result, the appeal is allowed. The judgement and order of conviction as well as sentence recorded by the trial court vide order dated 8.6.2018 passed by Additional District and Sessions Judge, Court No.9, Bulandshahar in Sessions Trial No. 247 of 2017 (State Vs. Sanjay Sharma) arising out of Case Crime No. 69 of 2016, under Section 302 IPC and Sessions Trial No.69 of 2018 (State Vs. Sanjay Sharma), under Section 25 of Arms Act arising out of Case Crime No. 70 of 2016 are hereby set aside. The appellant is acquitted of all the charges for which he has been tried. The appellant (Sanjay Sharma) is said to be in Jail, he be set at liberty forthwith, if not wanted in any other criminal case. The appellant (Sanjay Sharma) will fulfill the requirement of Section 437-A Cr.P.C. to the satisfaction of the trial court at the earliest.

38. Let a copy of this order/judgement and the original record of the lower court be transmitted to the trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgement in compliance register maintained for the purpose of the Court.

Order Date :-24.12.2021

AK Pandey